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BRAGGS v. LANE

July 14, 1989

HENRY BRAGGS, Plaintiff,
v.
MICHAEL LANE, et al., Defendants



The opinion of the court was delivered by: SHADUR

 MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE

 Earlier this week Henry Braggs ("Braggs") moved for the appointment of counsel to represent him in this in forma pauperis action brought under 42 U.S.C. § 1983 ("Section 1983") against Director of the Illinois Department of Corrections Michael Lane ("Lane") and three staff people (including Warden Jim Greer ("Greer")) at Menard Correctional Center ("Menard"), where Braggs is a prisoner. *fn1" After this Court had already dictated a draft of this opinion explaining why Braggs' motion had to be deferred and this action transferred, Lane, Greer and one of the other two defendants *fn2" tendered "Defendants' Motion for Change of Venue" to be presented on this Court's motion call July 19. This Court has now modified its draft opinion to reflect the latter motion and, for the reason stated in this memorandum order (and not for the erroneous reason advanced in defendants' motion), does indeed defer action on Braggs' motion and transfer this action.

 Whenever this Court confronts a motion for leave to file in forma pauperis in any case assigned to its calendar, it immediately addresses the two-part inquiry such motions call for:

 
1. whether plaintiff qualifies for such treatment in financial terms and
 
2. whether the complaint is non-"frivolous" in the sense recently defined in Neitzke v. Williams, 490 U.S. 319, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989).

 If both those questions call for an affirmative answer, this Court almost invariably appoints a lawyer to represent a pro se plaintiff, whether or not such appointment has been requested.

 In this case that original analysis led to the conclusion that leave should in fact be given to file Braggs' Complaint without payment of the filing fee, but this Court did not take the next step of appointing a lawyer to represent Braggs. That did not at all reflect an adverse judgment as to the desirability of doing so, but rather the anticipated likelihood that the case would end up transferred to the United States District Court for the Southern District of Illinois, where it could and should have been filed:

 
1. As already stated, Braggs is in custody in Menard, which is located in that judicial district; the events that form the subject matter of his Complaint occurred there; and all the defendants other than Lane almost certainly reside there.
 
2. As for Lane, the only connection the case has to this judicial district at all is that although his principal office is in Springfield, he maintains a secondary office in Chicago.

 Such a transfer being anticipated, this Court's view was that the transferee judge (who would then have the responsibility for handling the case) ought to be the one to decide whether counsel should be appointed. *fn3"

 This Court's threshold reaction was that it was not in a position to reject the action for improper venue at the outset. True enough, 28 U.S.C. § 1391(b) *fn4" -- applicable to a federal-question lawsuit such as this one -- limits filing to "the judicial district where all defendants reside, or in which the claim arose, except as otherwise provided by law." Even though Braggs' claim clearly arose in the Southern District of Illinois, and even though there is no judicial district where all the named defendants reside. *fn5" Section 1392(a) eases that requirement by permitting any action against defendants who reside in different districts within the same state to be brought in any of those districts. 1A-Pt.2 Moore's Federal Practice para. 0.343 [1], at 4191 (2d ed. 1989) (footnote omitted) explains that succinctly:

 
For those states containing more than one district, subsection (a) of § 1392 makes an exception to § 1391 to provide for the situation where there are multiple defendants, in a transitory civil action, who reside in different districts of the same state. In such case plaintiff has a choice of venue of any one district of the state where any of the defendants reside. *fn6"

 This Court was therefore initially prepared to consider the possibility, based on some existing case law (see generally 15 Wright, Miller & Cooper § 3805, at 38-40 & nn. 22 and 23 and 1A-Pt.2 Moore's para. 0.342[5.-1-2], at 4102 & n. 27), that Lane might be viewed as "residing" in this district because of his satellite office here. For that reason this Court allowed the ...


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